Opinion
H035769
09-20-2011
ANITA RAMAIYA, Plaintiff and Appellant, v. PACIFIC COAST CARE CENTER, LLC et al. Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. M94560)
Plaintiff Anita Ramaiya sued defendants Pacific Coast Care Center, LLC (Pacific) and Gerald Hunter for sexual harassment, assault, and related causes of action. The trial court granted defendants' motion for summary judgment. On appeal, plaintiff contends that she raised triable issues of fact as to her causes of action for sexual harassment and assault. We agree as to the cause of action for sexual harassment. We therefore reverse the judgment with directions.
SCOPE OF REVIEW
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)Summary judgment is properly granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)
We review an order granting summary judgment under the de novo standard of review. (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 326.) "It is axiomatic that we review the trial court's rulings and not its reasoning." (People v. Mason (1991) 52 Cal.3d 909, 944.) Thus, we will affirm a trial court's decision granting summary judgment if the decision is correct, regardless of the trial court's reason for it. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.)
In undertaking our de novo review, we identify the issues framed by the pleadings, determine whether the moving party has established facts justifying judgment in its favor, and decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-887.) A defendant moving for summary judgment establishes facts justifying judgment in its favor by presenting evidence demonstrating that one or more elements of the cause of action cannot be established or that there is a complete defense to it. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar, supra, 25 Cal.4th at pp. 849-850.) We view the evidence in a light most favorable to the losing party, resolving any doubts or ambiguities in his or her favor. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.)
BACKGROUND
Pacific operates a licensed skilled nursing facility. Hunter is Pacific's executive director. He supervises seven departments, including the dietary services department. In August 2007, he hired plaintiff as a food service manager. In October, he rated plaintiff's job performance as needing improvement and unacceptable in 16 of 27 categories. In November, he rated her performance as still needing improvement and extended her probation period. In January 2008, he gave plaintiff a written warning for certain oversights and extended her probation period to April. In March, he gave her a final written warning for performance deficiencies. In April, he offered her the choice to resign or be terminated. Plaintiff then resigned.
THE PLEADINGS
Plaintiff filed this action on October 23, 2008. As relevant to the issues raised on appeal, the first amended complaint alleges the following.
"During the job interview, HUNTER asked [plaintiff], among other things, if she was single and if she had any family."
"Shortly [after plaintiff began working at Pacific], on September 11, 2007, HUNTER sexually assaulted [plaintiff]. He summoned her to his office, asked her to close the door, rolled his chair from behind his desk, spread his legs wide apart, began stroking his groin area as if masturbating, and moaned and groaned as if having an orgasm within a few feet from her."
"On September 12, 2007, HUNTER called [plaintiff] into his office again and simply stared at her breasts, making [plaintiff] feel as though HUNTER could see through her clothing."
"Thereafter, HUNTER continued to sexually harass [plaintiff] by summoning her to his office, staring at her breasts, and making moans and groans as if he was sexually excited or was experiencing an orgasm. On each occasion, [plaintiff] spurned HUNTER's advances and complained to [Pacific's Human Resources Department representative] about them. These repeated pleas to for [sic] protection fell on deaf ears, as PACIFIC never took any disciplinary action."
"As a result, [plaintiff] found it increasingly difficult to do her job. She dreaded going by HUNTER's office, did her best to avoid him, and lived in fear that he would terminate her for not submitting to his sexual advances."
"In December, 2007 HUNTER, gave [plaintiff] a Christmas gift which as far as [plaintiff] knows was not given to other employees."
"April 8, 2008, after [plaintiff] had again refused to submit to his advances, HUNTER summoned [plaintiff] to his office on [sic] and told her to resign or she would be fired."
"HUNTER's constant advances were so pervasive and severe as to not only cause [plaintiff] apprehension about losing her job if she did not submit, but also alter the conditions of employment and create an abusive working environment . . . ."
"HUNTER's sexual advances caused [plaintiff] to worry and fear that he would touch her in a sexually-suggestive manner."
UNDISPUTED MATERIAL FACTS
Defendants complain that plaintiff has referred to evidence that was excluded by the trial court upon defendants' objections. Plaintiff has not challenged the trial court's evidentiary rulings. We have endeavored to state the undisputed material facts without reference to evidence that the trial court excluded.
Plaintiff's deposition testimony and supporting declaration provides the support for her allegations.
Hunter called plaintiff into his office on September 11, told plaintiff to close the door, rolled on his chair from behind his desk to the side of his desk, "spread his legs . . . and started to rub on his crotch area." "He started to moan while he was doing it, and he was groaning at the same time while he was doing it." Plaintiff "asked him, 'Is that what you called me in here for?' " Hunter stopped and rolled his chair back after plaintiff told him that she had "to get out." The incident lasted one to two minutes. Hunter made sounds and touched himself in his office just this "once."
"There were other times after that incident, sounds were made, there were [sic]no touching. There were other times there were no sounds, there were no touching. [Sic.]So it depended on his mood." The times that Hunter made sounds but no touching happened "once in a while." Though Hunter called plaintiff into his office "quite frequently, . . . the moaning and groaning wasn't that frequent."
Hunter never said anything sexual to plaintiff. He never asked for any sexual favors. He never asked plaintiff to touch or kiss him. He never asked plaintiff for a date. He never said "anything . . . that if [plaintiff] didn't have sex with him he'd fire [her] or make bad things happen." He threatened to fire plaintiff once--about a month before plaintiff resigned—because "it was the food. The purchasing of the food. There was insufficient food [sic]item."
Plaintiff, however, relates that Hunter once said at a manager's meeting that his wife had ordered a drink called a "stiff dick" and then later asked whether he had offended anyone by making the remark.
Hunter often stared at plaintiff. "There are many times he came into [plaintiff's] office, and he stood so very close to [plaintiff], as if to say he was just going to reach out and touch [plaintiff]. And he's not saying anything. He's just standing and staring at [plaintiff]."
Plaintiff describes the staring in her declaration as staring at her breasts and looking through her clothing.
Once, when Hunter was making his monthly rounds, "when this place where we are trying to pass is so tiny, and Mr. Hunter is coming from in front. [Plaintiff was trying] to get to the side. So, [plaintiff was] making room for him to pass. [¶] Instead of waiting for the room, [Hunter] rubs up--right up on [plaintiff], and then he moves."
Plaintiff amplifies this incident in her declaration as follows: "On one occasion during my employment with [Pacific], Mr. Hunter rubbed his groin area against my body while he passed me in the hallway at work, even though I was making room enough for him to pass by without touching me at all."
Hunter gave plaintiff birthday gifts, which a coworker had not heard of Hunter doing before, consisting of a plant and something "like an incense" with a writing that plaintiff believed stated "For those pleasurable moments." After Hunter gave plaintiff the incense, Hunter's behavior toward plaintiff changed. "He stopped calling [plaintiff] constantly into his office." "He wasn't bothering [plaintiff] as much. He wasn't coming into [plaintiff's] office as much. He wasn't calling [plaintiff] as much, again, on [the] phone."
Plaintiff states in her declaration that the incense was a Christmas gift, the incense label also said "Hawaiian Pleasure," and the gift was not part of the managers' gift exchange.
SEXUAL HARASSMENT
"The Fair Employment and Housing Act (FEHA) 'prohibits a variety of unfair labor practices including discrimination "in terms, conditions or privileges of employment" on the basis of sex.' " (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516.) Government Code section 12940, subdivision makes it unlawful for an employer, because of sex, to "harass an employee, an applicant, or a person providing services pursuant to a contract." "There are two recognized categories of sexual harassment claims. The first is quid pro quo harassment, where a term of employment or employment itself is conditioned upon submission to unwelcome sexual advances. [Citation.] The second . . . is hostile work environment, 'where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.' " (Beyda v. City of Los Angeles, supra, at pp. 516-517.)
Plaintiff's hostile-work-environment allegations center on the September 11, 2007, "groin-stroking" incident, the September 12, 2007, "staring" incident, unspecified continued "staring" and "moaning" incidents, and the December 2007 "Christmas-gift" incident.
Plaintiff sometimes refers to the "hallway-rubbing" incident, but this incident was not pleaded. Nor was it referred to in the sixth cause of action for sexual assault. That cause of action incorporated the first amended complaint's previous allegations and merely generally alleged that "HUNTER's sexual advances caused [plaintiff] to worry and fear that he would touch her in a sexually-suggestive manner." The pleadings delimit the scope of the issues on summary judgment. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.)
The trial court held that the acts of harassment plaintiff described were not sufficiently severe or pervasive to constitute the hostile-work-environment form of sexual harassment. Plaintiff disagrees with the ruling. The issue is whether the undisputed facts could support a finding that plaintiff suffered the hostile-work-environment form of sexual harassment.
A hostile work environment is a workplace "permeated with 'discriminatory intimidation, ridicule, and insult,' [citation], that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.' " (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21.) " ' "[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances [including] the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." [Citation.]' [Citation.] Therefore, to establish liability in a FEHA hostile work environment sexual harassment case, a plaintiff employee must show she was subjected to sexual advances, conduct, or comments that were severe enough or sufficiently pervasive to alter the conditions of her employment and create a hostile or abusive work environment." (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) Moreover, "[t]o be actionable, 'a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.' " (Id. at p. 284.)
Sexual harassment is also prohibited by title VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). Since the antidiscriminatory objectives and overriding public policy purposes of title VII and the FEHA are identical, it is appropriate to consider federal cases interpreting title VII when analyzing sexual harassment claims under the FEHA. (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1416, fn. 5; Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at pp. 516-518.)
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Sexual harassment does not necessarily involve sexual acts (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348), and hostile work environment sexual harassment "need not have anything to do with sexual advances." (Ibid.)Gender need only be " ' "a substantial factor in the discrimination and that if the plaintiff 'had been a man she would not have been treated in the same manner.' " ' " (Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 1001; Hall v. Gus Const. Co., Inc. (8th Cir. 1988) 842 F.2d 1010, 1014 [harassment included name calling, crude practical jokes, and requests for sex].)
In Birschtein v. New United Motor Manufacturing, Inc., supra, 92 Cal.App.4th 994, the court explicitly rejected the argument that "repeated acts of staring at a fellow worker cannot qualify as actionable sexual harassment as a matter of law." (Id. at p. 1001.) There, the plaintiff alleged that a coworker had made overt passes at her until she complained to her foreman. Thereafter, the coworker's conduct involved staring at her at least five times a day for between five seconds and 10 minutes at a time. Answering in the affirmative the question, "Can staring at a fellow employee . . . constitute actionable sexual harassment" under the FEHA (id. at pp. 996-997), the appellate court reversed the summary judgment entered in favor of the employer.
In assessing the objective severity of harassment, one must carefully consider the "social context in which particular behavior occurs and is experienced by its target." (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81.) "The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed." (Id. at pp. 81-82.)
Here, Hunter rubbed his crotch and moaned while privately meeting with plaintiff. Thereafter, he made similar sounds in a similar setting and often stared at plaintiff. Viewed both objectively and subjectively, it cannot be said that--as a matter of law--such conduct must be considered " 'occasional, isolated, sporadic, or trivial.' " (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) Liberally construing plaintiff's evidence, as we must, and considering the totality of the circumstances in light of Hunter's initial behavior, occurring as it did at the launch of plaintiff's job--thereby setting the tone of plaintiff's employment--the above described conduct is relevant and presents a triable question of whether defendants' workplace was a hostile environment because of gender.
Moreover, in assessing the objective seriousness of Hunter's conduct, it must be understood in the context of his status as plaintiff's supervisor. In an analogous case involving racial discrimination under the FEHA and title VII, where the offender is a supervisor (rather than a coworker), the conduct is generally deemed more serious: "In many cases, a single offensive act by a coemployee is not enough to establish employer liability for a hostile work environment. But where that act is committed by a supervisor, the result may be different." (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 36 (Dee).) The Dee court noted that in Brooks v. City of San Mateo (9th Cir. 2000) 229 F.3d 917, 927, footnote 9, the federal appellate court reasoned that " 'a sexual assault by a supervisor, even on a single occasion, may well be sufficiently severe so as to alter the conditions of employment and give rise to a hostile work environment claim' " (Dee, supra, at p. 36), and in Rodgers v. Western-Southern Life Ins. Co. (7th Cir. 1993) 12 F.3d 668, 675, the federal appellate court held that "a single racial slur by a supervisor may also create a hostile work environment." (Dee, supra, at p. 36.) Thus, in Dee, a supervisor's single racial slur was sufficient to withstand summary judgment on her FEHA claim, where the supervisor had also instructed the employee to lie, used foul language to her, and berated her in the workplace. (Id. at pp. 36-37.)
It is true that plaintiff's evidence about Hunter's conduct is to a large extent vague and lacking in detail. Detail and vagueness, however, go to the weight of the evidence and a dearth thereof, as with credibility, does not justify the grant of summary judgment. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840 [in resolving summary judgment motion, the trial court does not weigh evidence, or evaluate credibility or plausibility of plaintiff's claims].)
Ultimately, whether hostile work environment sexual harassment existed will be a matter for the jury to determine, in light of the context in which the behavior occurred, considering the circumstances, expectations, and relationships, as well as the credibility of the witnesses. (Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at p. 517.) Again, we are cognizant of the importance of social context when assessing the severity of harassment. (Oncale v. Sundowner Offshore Services, Inc., supra, 523 U.S. at p. 81.) However, we are unable to accept that the evidence presented here shows no more than rude or isolated behavior. While defendants may be able to convince a jury that the conduct at plaintiff's workplace did not constitute severe or pervasive sexual harassment, the evidence presented on the motion for summary judgment does not compel that conclusion.
At this point, the nature of our task in reviewing the order granting defendants' motion for summary judgment bears repeating. It is only to determine, based on our de novo review of the evidence, whether a reasonable finder of fact could find that the conduct in question was because of plaintiff's sex and was severe or pervasive enough to alter plaintiff's working conditions. The question is not whether we think the conduct rose to an actionable level, but whether, in light of the evidence, it would be impossible as a matter of law for any reasonable factfinder to think so.
Civil Code section 51.9, subdivision (a)(1)(F)(2) prohibits "solicitations, sexual requests, [and] demands for sexual compliance," thus allowing a plaintiff to sue for the quid pro quo form of sexual harassment. "To establish quid pro quo sexual harassment under [the FEHA], a plaintiff must show 'that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands.' " (Hughes v. Pair, supra, 46 Cal.4th at p. 1049.)
Defendants argue that plaintiff did not plead quid pro quo harassment. Plaintiff, however, disagrees: "Indeed, Plaintiff alleged facts in her First Amended Complaint . . . supporting a quid pro quo theory of harassment, namely, that she feared Hunter would terminate her for not submitting to his sexual advances and that after she again refused to submit to his advances, Hunter told her to resign or be fired."
Plaintiff's record reference for the above refers to the following two allegations. One, "As a result, [plaintiff] found it increasingly difficult to do her job. She dreaded going by HUNTER's office, did her best to avoid him, and lived in fear that he would terminate her for not submitting to his sexual advances." Two, "April 8, 2008, after [plaintiff] had again refused to submit to his advances, HUNTER summoned [plaintiff] to his office on [sic] and told her to resign or she would be fired."
If we liberally construe plaintiff's allegations, we glean a scenario where Hunter made sexual advances toward plaintiff, plaintiff refused Hunter's advances, and Hunter compelled plaintiff to resign. Thus, plaintiff's factual allegations state that plaintiff lost her job because she refused to submit to her supervisor's sexual demands, which is a basis for a claim of quid pro quo sexual harassment.
If we liberally construe plaintiff's evidence, we glean a scenario where Hunter made a private, unprovoked sexual gesture to plaintiff at the beginning of plaintiff's employment to which plaintiff expressed disinterest. A reasonable jury could construe Hunter's behavior as a sexual advance. Thereafter, Hunter subjected plaintiff to his stares, moaning, and periods of probation before giving plaintiff the choice of resigning or being terminated. A reasonable jury could construe Hunter's behavior as conditioning plaintiff's employment upon plaintiff's reconsideration of her disinterest in the sexual advance.
SEXUAL ASSAULT
Plaintiff contends that "a reasonable inference exists and a jury could find that Hunter deliberately touched Plaintiff in an offensive matter [sic] when he rubbed his groin against Plaintiff's body while passing her in the hallway, since at the time she was making enough room for him to pass without touching her. In addition, a jury could find that Hunter assaulted Plaintiff when he rubbed his groin and moaned while seated a few feet away from her while in his closed office with no one else present."
As we have mentioned, plaintiff incorporated her sexual harassment allegations into the sexual assault cause of action and generally alleged that Hunter assaulted her via the same behavior that constituted sexual harassment; and, as we have mentioned, plaintiff did not plead that Hunter assaulted her via the "hallway-rubbing" incident. (Ante, fn. 6.) Thus, to the extent that plaintiff is arguing that Hunter sexually assaulted her in the hallway, the argument fails. "The burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint. A 'moving party need not ". . . refute liability on some theoretical possibility not included in the pleadings." ' " (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Stated differently, a plaintiff "may not defeat a summary judgment motion by producing evidence to support claims that are outside the issues framed by the pleadings." (Vournas v. Fidelity Nat. Tit. Ins. Co. (1999) 73 Cal.App.4th 668, 674, fn. 6.)
As to the "groin-stroking" incident, plaintiff's cause of action fails because, as defendants point out, it is barred by the exclusive remedy of the workers' compensation system. Claims for assault and battery, even when brought in conjunction with a viable claim for discrimination or harassment, are barred by workers' compensation exclusivity. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1486-1488.)
Plaintiff argues that she raised a triable issue of fact as to the one possible exception to this rule where there is a "willful and unprovoked physical act of aggression assault" with an "intent to injure." (See Lab. Code, § 3601, subd. (a)(1); Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1006 [Labor Code exception for "a 'willful and unprovoked physical act of aggression' includes an intent to injure requirement."].) We disagree. It is undisputed that (1) Hunter was sitting in his chair, (2) the only physical act Hunter committed was on himself, and (3) Hunter did not do any aggressive act to suggest that he intended to physically injure plaintiff.
DISPOSITION
The judgment is reversed. The trial court is directed to set aside its order granting defendants' motion for summary judgment and enter a new order (1) granting defendants' motion as to all causes of action except the cause of action for sexual harassment, and (2) denying defendants' motion as to the cause of action for sexual harassment.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.